Oscar Pistorius's fate hinges on one question
In just over two weeks, Oscar Pistorius will be 29 years old – the age Reeva Steenkamp was when he shot and killed her.
The weeks that lead up to the Paralympian’s birthdate on 22 November will, no doubt, be tense for everyone who loved or were linked to the ill-fated couple. They will know, as the world does, that the judges of the Supreme Court of Appeal will spend those weeks determining whether Steenkamp’s death will continue to be defined as a terrible act of negligence or as a murder.
The three hours the appeal court’s five judges spent this week questioning both prosecutor Gerrie Nel and defence advocate Barry Roux appear to suggest that they will favour the latter definition.
Crucially, though, they are not being asked to find that Pistorius set out to murder his girlfriend.
Instead, the state has argued that Pistorius committed murder with indirect intent: that he set out to take the life of whoever was standing behind his toilet door on Valentine’s Day 2013. Even if he believed he was shooting at an intruder, the state says, he is guilty of murder.
If the state succeeds in this argument, it has asked that Pistorius’s culpable homicide conviction be substituted with one of murder, and his case referred back to Judge Thokozile Masipa for sentencing.
Prosecutors are likely to ask that Pistorius be imprisoned while this process takes place, meaning he will have to bring a costly bail application if he wishes to stay out of jail.
Pistorius faces a minimum 15-year sentence if he is convicted of murder, unless his defence team shows “substantial and compelling circumstances” to justify a lesser sentence. It seems likely that the state will fight for as heavy a sentence as possible for Pistorius – despite the fact that he has already served one year for negligently killing Steenkamp.
Nel had argued throughout Pistorius’s trial that the Paralympian murdered Steenkamp after an argument, and that her killing was deliberate and premeditated.
He argued in the state’s appeal against Pistorius’s culpable homicide conviction that Masipa had ignored evidence that supported this case –but backed out of persisting with an argument that Pistorius should have been convicted of murder with direct intent during the appeal.
Responding to a question from Judge Steven Majiedt about whether he was making a case for dolus directus (murder committed with direct intent), Nel answered that he was “not going there”.
“If the aim was higher, if there wasn’t a door, I would have made different submissions,” Nel told the court. “But the submissions we made is that there was foresight, that a person standing behind a door in a small cubicle … if you fire four shots into that, a person will die.
“The accused went ahead and fired four shots, not just one.”
He was pressed by Judge Eric Leach to confirm that the state was not persisting with a case that “there was an argument that led to her [Steenkamp] fleeing and locking herself in the toilet and then being shot”.
Because Masipa had rejected testimony that a woman was heard screaming during the shooting, Nel said: “I am not.”
Leach said: “So the court’s finding should have been that there was a person in this tiny cublicle when he [Pistorius] fired four shots into that cubicle, and that that constituted murder?”
“Indeed,” Nel responded.
The state’s decision to abandon its premeditated murder case against Pistorius was, arguably, a wise one. The defence had constructed a compelling timeline of Steenkamp’s shooting from telephone records and witness accounts – which showed that it wasn’t possible for the female screams heard by so-called “ear witnesses” to have been made by Steenkamp. The state had no answer to that timeline.
Roux, who so painstakingly constructed a web of evidence to disprove the state’s portrayal of Pistorius as an enraged and murderous boyfriend, seemingly had far less success convincing the appeal court that his client’s decision to shoot through his toilet door was driven by real terror – and should not be defined as murder.
Roux spent twice as long as Nel did making his case, owing largely to the numerous interruptions and questions he faced from the judges. Perhaps most persistent of these was Leach: “Did he [Pistorius] honestly and genuinely believe he was entitled to shoot whoever was behind the door? Because that has to be established,” he asked Roux.
He continued: “The trial court analysed [Pistorius’s] evidence and found him to be a shocking witness. His version that the intruder entered through the bathroom window ... Was there anything that showed that, apart from the noise, that his life was in danger?”
In response, Roux persisted with his argument that Pistorius could not be evaluated according to the standards applied to the able-bodied. He referred to a state psychologist report that described “the two Oscars”: one an athletic superstar, the other a deeply anxious and fearful amputee.
But perhaps the most difficult question he faced related to Masipa’s finding that, because Pistorius had not foreseen that Steenkamp was standing behind the door when he fired into it, he could not be convicted of murder with indirect intent.
Judge President Lex Mpati asked Roux whether Masipa should not rather have questioned whether Pistorius had subjectively foreseen “that if I fire through that, toilet door, the person behind will be killed”.
That question is at the very heart of the appeal. It is far less sensational than claims about a lovers’ quarrel that turned violent, and far less likely to garner headlines than the image of the fallen Paralympic hero sobbing and retching in the dock.
The consequences of its answer, however, are profound.